Planning the move to a new school for children with SEND
The snow has gone, spring is finally in the air and up and down the country, parents, carers and their children and young people with SEND are planning the move from one phase of education to another (whether nursery to primary, primary to secondary, or beyond).
At this time of year, our volunteers make lots of calls to parents and carers with questions about support during this transition and beyond and what schools and LAs should be doing. We’ve set out some of the information we’re most frequently asked for.
SEN Support and transfer
Maintained nurseries, schools, Academies and FE colleges have a duty to use their best endeavours to secure that the special educational provision required by a pupil/student’s special educational needs is made (s.66 Children & Families Act 2014, “CAFA 2014”). So, support should continue as the student moves through the different phases of their education and training.
However, parents, carers and young people may have concerns about the way this support is delivered and whether the demands of the new environment on the student will be catered for. Check the setting’s website for information about the special educational provision they typically provide: the SEN Information Report which maintained schools, nurseries and Academies must produce is a good starting place.
Maintained schools, nurseries and Academies also must have a SENCO and FE colleges must have an equivalent member of staff. Ask them about what they can do to support the student, visit the setting and consider the environment and the support on offer. The important thing is to make sure you start these visits and questions early: ideally starting a good 18 months before the transfer will happen.
It may be that the transfer to a new phase of education and/or training means that the special educational provision typically available may/is not going to meet the student’s special educational needs.
If this is the case, consider requesting an EHC needs assessment. Remember the decision whether or not to assess is set out in s.36(8) CAFA 2014: does the child/young person have or may they have special educational needs and might it be necessary for the special educational provision required by those needs to be secured under an EHC plan. In Buckinghamshire County Council v HW (SEN)  UKUT 0470 (AAC) (which concerned a child in Y6 who would be transferring to secondary school), the Upper Tribunal confirmed that: “When there will be a change of circumstances in the near future, it is impossible to ignore that future”. Therefore, “The assessment cannot realistically limit itself to the immediate present”. If the child or young person did need an EHC plan then the entire process could take 20 weeks from the date the assessment is requested.
Note also that the Schools Admissions Code (December 2014) requires children with special educational needs to be treated fairly. Schools must not refuse to admit a child who has special educational needs on the basis they do not feel able to cater for these needs. Nor should they be expressing such views on an informal basis, for example during school visits or open days. If a school believes an EHC plan might be necessary to secure the special educational provision required then they can either support a parent’s or young person’s request for an EHC needs assessment or request this itself.
EHC plans and transfer between phases of education
Under the SEN and Disability Regulations 2014 (as amended)(the “SEN Regs”), LAs have to review EHC plans by certain deadlines where a child or young person is within 12 months of a transfer between phases of education (Reg 18). The three deadlines are:
31 March in the calendar year of the child or young person’s transfer from secondary school to a post-16 institution; and
15 February in the calendar year of the child’s transfer in any other case; and
At least five months before a young person transfers from one post-16 institution to another post-16 institution.
Where necessary (i.e. because the child or young person is or may be moving to a different school/college) the LA must amend the EHC plan so that it names the school, post-16 or other institution, or type of school or institution, which the child or young person will attend following that transfer and issue the final amended EHC plan by the statutory deadline.
Where the LA proposes amendments to an EHC plan then they must follow the process set out in Reg 22 which includes giving parents, carers or young people at least 15 days to make representations about the content of the EHC Plan (and proposed amendments) and to request that a particular school/institution is named in the amended Plan.
The statutory process and the duties of the LA under Regs 18 and 22 have two consequences:
School admission and the EHC Plan
Children and young people with EHC plans should NOT be having their placements determined through the general schools’ admissions process – even where they are seeking a mainstream placement.
Very often parents, carers and young people are required to apply for placements for students with EHC plans through this process but this very often means that LAs are getting parents to request placements outside of the statutory process of amendment and without the benefit of the annual review.
IPSEA advises parents, carers and young people to remember these key points:
Changing the special educational provision in the EHC plan
Any change to the EHC plan must be based on evidence of a change to what the child or young person in question requires and not on the fact that they have attained a certain age or are moving to a certain phase of their education or type of setting.
Whatever the stage of education and/or training the child or young person is at, the EHC plan must specify their special educational needs, the special educational provision required to meet each of those needs and the outcomes sought by the provision being applied to support those needs (s.37 CAFA 2014). In all but the most exceptional cases, the special educational provision will need to be quantified in terms of hours if it is to meet the level of specificity required by law.
An EHC plan should not be stripped of its specificity because a child or young person is moving to a new phase of their education.
For over 30 years now, the law in this area has been absolutely clear. The EHC plan must be:
“so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case. Very often specification of hour per week will no doubt be necessary and there will be a need for that to be done.” L v Clarke & Somerset CC  ELR 129
Moving to a new phase of education/training may require changes to the way special educational provision is delivered or what is required. Special educational needs may have changed since the previous annual review or when the EHC plan was finalised. However, any change must be made on the basis of evidence of the individual child or young person’s requirements: not the typical model of provision for the placement or what is generally suitable for an age group.
The LA must give parents, carers and young people at least 15 days to make representations about any proposed amendments.
IPSEA – April 2018
Our Tribunal Helpline Gives next step advice on SEN appeals and disability discrimination claims to the Special Educational Needs and Disability Tribunal. When you call we will also assess whether you need casework support. Please click here to book an appointment to get one of our advisers to call you back.